Franz' Estate, In re

• Decision Date: 14 January 1952
• Docket Number: No. 1,No. 42369,42369,1
• Citation: 245 S.W.2d 1
• Parties: In re FRANZ' ESTATE
• Court: Missouri Supreme Court

Page 1

245 S.W.2d 1

In re FRANZ' ESTATE.

No. 42369.

Supreme Court of Missouri, division No. 1.

Jan. 14, 1952.

G. A. Buder, Jr., Fred J. Hoffmeister and Tralles, Hoffmeister & Gilpin, St. Louis, for appellants.

Henry A. Baker, administrator ad litem of respondents Johanna F. Fiske and others, Jesse T. Friday, St. Louis, E. J. Doerner, Tulsa, Okl., for respondents.

DALTON, Judge.

This is an appeal from a judgment of the Circuit Court dismissing, with prejudice, for want of jurisdiction the demands of appellants for compensation for legal services and for reimbursement of funds advanced and expended, as originally filed in the Probate Court of the City of St. Louis, against the estate of Sophie Franz, deceased.

The demands were filed May 14, 1931. The notice of demands and acknowledgment of service is dated May 1, 1931. The notice stated that appellants would, at the time therein mentioned, 'present to said court for allowance against the Estate of Sophie Franz, deceased, two demands for the sums of Two Hundred Ten Thousand Dollars ($210,000.00) and Two Thousand Six Hundred Eighty-six Dollars and Eighty-seven cents ($2,686.87), respectively, the former founded upon an agreement and the latter on an open account, the particulars of which are duly set forth in the annexed petition.'

The petition, in part, stated: 'Now come G. A. Buder and O. E. Duder, co-partners engaged in the practice of law in the City of St. Louis, Missouri, under the firm name of Buder and Buder, and respectfully show to the Court that they acted as the attorneys and legal advisors of Sophie Franz during her lifetime, and for G. A. Franz and G. A. Buder, Trustees under a certain trust conveyance made by said Sophie Franz, dated January 30, 1909, all in accordance with the terms of said trust conveyance. That on March 5, 1924, in the City of St. Louis, Missouri, Ehrhardt W. Franz, a son of said Sophie Franz, and one of the heirs and legatees under the will of Ehrhardt D. Franz, deceased and one of the beneficiaries under the said trust agreement of January 30, 1909, filed a suit in the United States District Court for the Eastern Judicial District of Missouri, against said Sophie Franz and G. A. Franz and G. A. Buder, Trustees, and others, said cause being entitled E. W. Franz v. G. A. Buder et al., No. 6682 in Equity, 82 F.Supp. 379; 92 F.Supp. 388.

'That under the terms and authority contained in said trust agreement, the said Sophie Franz and the said Trustees engaged the said firm of Buder and Buder to represent them, and such other beneficiaries under the terms of said trust agreement as were not represented by other counsel or attorneys in said suit of E. W. Franz, and the subsequent litigation that followed. That the services rendered by said Buder and Buder in said suit and litigation included appearances in Court, preparation of pleadings, representation, advice, counsel filing of briefs and rendering of sundry other legal services in the following suits, proceedings, appeals, hearings, trials and appearances in connection therewith as follows, to-wit:' (Italics ours.) (Some twenty-three cases, hearings and motions are then listed.) The petition proceeds: 'That the services so rendered by said firm of Buder and Buder beginning on the fifth day of March, 1924, up to and including the fourteenth day of April, 1930, and subsequent thereto insofar as the said proceedings affected the Estate of Sophie Franz, deceased, were and are reasonably worth Two Hundred Twenty-five Thousand Dollars ($225,000.00); that said firm has been paid the sum of Fifteen Thousand Dollars on account of said services, and that there remains due and owing to said firm on account of said services in such litigation, a balance of Two Hundred Ten Thousand Dollars ($210,000.00), for which amount judgment is prayed.

'Your petitioners allege, however, that it is their intention to allow as offsets and credits against the total herein claimed (and any judgment that may be hereafter rendered on said claim), any sums that may be ordered paid to the firm, by the United States District Court of the Eastern Judicial District of Missouri, as attorneys' fees on behalf of said Sophie Franz, or said G. A. Franz and G. A. Buder, Trustees, in passing upon various and divers motions and petitions now pending before it, the filing of this claim and demand being merely a precautionary measure, so that it will not be held that their claim shall have been barred or foreclosed in the event said United States District Court should make no allowance, order or ruling respecting attorneys' fees in the matters now pending before it.

'And, as an additional claim the said firm of Buder and Buder respectfully represents that it has laid out and expended on behalf of said Sophie Franz, during her lifetime, various sums of money, and has also received and credited to her account various other sundry sums of money, all done at her instance and request, and as her attorneys and fiscal agents, all as more fully appears in an itemized statement and open account hereto attached and marked Exhibit A.

'That * * * Sophie Franz was, at the time of her death, indebted to these claimants for outlays, in the sum of Two Thousand Six Hundred Eighty-six Dollars and Eighty-seven Cents ($2,686.87), which remains due and owing to them, and for which amount they also pray judgment against the Estate of said deceased.' (Italics ours.)

Exhibit A lists detailed outlays and credits and shows a net balance of $2,686.87 due Buder and Buder for which amount the claim is presented.

Motions to dismiss the demands for want of jurisdiction were filed in the Probate Court and sustained. Claimants appealed to the Circuit Court where motions to dismiss for want of jurisdiction were again filed and were overruled on June 4, 1945. Thereafter, on December 2, 1949, new joint motions to dismiss were filed.

The grounds stated in the motion to dismiss the first demand were: (1) That it appears on the face of the notice of said alleged demand and upon the face of the petition attached thereto, that the demand is founded upon an instrument of writing, to-wit, a certain conveyance in trust executed by Sophie Franz, dated January 30, 1909; that a copy thereof was not filed with the demand within the period allowed by the special statute of limitations or nonclaim; and that no valid demand was ever filed against the estate, and the court has no jurisdiction, on appeal, to hear, determine or allow the alleged demand. (2) That the demand originally filed in the probate court did not state a claim upon which relief could be granted for the reason that the demand shows upon its face that it is conditional and contingent upon a similar demand for compensation in litigation pending in the federal court. (3) That the demand 'shows upon its face that it involves a charge or claim by the claimants as attorneys for the trustees, against the trust estate of Sophie Franz, and involves an accounting and settlement of said trust estate between the trustees thereof and the executor of the estate of Sophie Franz, deceased, all of which are matters within the exclusive jurisdiction of a court of equity * * *.' (4) 'Because said alleged demand of claimants does not state a claim upon which relief can be granted.' The motion to dismiss the second demand stated the ground therefor, as follows: 'That said demand does not state a claim upon which relief can be granted.' These motions were sustained, October 1, 1950, 'for want of jurisdiction' and the demands were dismissed with prejudice.

Appellants contend that the court erred in sustaining the motions and dismissing the damands. Appellants say that the first demand stated a claim in quantum meruit for compensation for the reasonable value of the legal services rendered the decedent, Sophie Franz, in her lifetime; that the claim is not founded on a written instrument; that the statutes relied on by respondents are not applicable; that the demand, as filed in the probate court, is not to be judged by the strict rules of pleading as applied to pleadings in the circuit court; and that the demand is neither conditional, nor contigent, nor one cognizable in equity. Appellants insist that the second demand stated a claim for the recovery of monies paid out and expended on behalf of the same decedent; and that both demands are in every way sufficient.

With reference to the first demand, respondents say that 'nowhere in appellants' claim, as originally filed in the probate court, is it alleged or asserted that the services for which compensation is claimed were rendered at the instance and request of the deceased Sophie Franz, deceased'; that the claim shows on its face that appellants 'acted as legal advisors to G. A. Buder, et al., trustees, and to the deceased, 'all in accordance with the terms' of the trust conveyance made by Sophie Franz on January 30, 1909; that appellants were 'engaged' to represent such persons in the litigation enumerated in the claim pursuant to both the terms and authority contained in said trust agreement'; that 'the obligation, if any, to pay for such services under the circumstances was upon the trustees and the trust estate, and not upon Sophie Franz, or upon her estate after her death'; that the 'expenses, including attorney fees, incurred pursuant to the 'terms and authority' of a nontestamentary trust can be allowed only in a court of equity upon proper accounting by the trustees'; that, since the services, if rendered to Sophie Franz during her lifetime, were under the terms and authority contained in the trust agreement, failure to file a copy of such trust agreement or conveyance was fatal to the jurisdiction of the Probate Court to hear and determine the claim; that the claim shows on its face it was filed as a precautionary measure and is conditional, contingent and not one running to certain maturity; that 'while the rules of pleading in probate matters...